THE RIGHTS OF PARENTS AND CHILDREN IN SPECIAL EDUCATION

Parents and guardians of children who are in special education or who are being evaluated for special education have the right to take part in making decisions about the child’s special education. They have the right to be notified of important events that involve the child’s special education. Parents and guardians may also request independent evaluations to help determine whether a child has a disability and is eligible for special education, request hearings to review school decisions regarding a child’s special education, and file complaints with the Department of Public Instruction. Schools are required to notify parents or guardians of these and other rights, which are called procedural rights, whenever any of the following occurs:

• the child is referred for an initial evaluation or is re-evaluated
• the school proposes to change the child’s special education plan (IEP)
• the school proposes to change the child’s educational placement
• the school proposes a change in the education provided a child
• the school refuses to take action in conection with the evaluation, identification, placement or education of a child

The parent or guardian is a member of the IEP Team that evaluates the child, decides whether the child is eligibe for special education and services, develops the child’s education program (IEP) and decides the child’s placement. The parent or guardian must be offered the chance to participate in the placement decision. A placement decision may be made without the participation of the parent or guardian if the school tries but is unable to get the parent or guardian to participate.

Notice

The school must give the child’s parent or guardian notice that is written in a way that is understandable to the general public and that is in the language of the child’s parent or guardian whenever the school decides or refuses to take action to identify a child with a disability, to evaluate or re-evaluate a child, make any change in the child’s placement, or having to do with the child’s special education. The notice should:

• explain what the school is proposing or refusing to do, and why
• describe any evaluations, tests, reports and other information the school has considered
• describe any other options the school considered and explain why those options were rejected by the school
• identify the evaluators if an evaluation or re-evaluation is proposed,
• include a statement that the parent or guardian has certain procedural rights and explain how to obtain a list and description of those rights
• tell parents or guardians how they can get information to help them understand the special education law

Parental consent is required for evaluations or special education

Parents or guardians must give consent before a child may be evaluated and before the school may begin providing special education and services to the child. If the parent denies consent, the school district may request a hearing to decide whether the school district may go ahead with the evaluation or with the special education and services.

The right to see records

Parents and guardians have the right to examine all having to do with the idenitification, evaluation and educational placement of a child and the provision of a free an appropriate education to the child, before any meeting or hearing. This right includes the right to an explanation and interpretation of the records.

Independent educational evaluations

Parents who disagree with the school’s evaluation and testing of a child may request an Independent Educational Evaluation (IEE). If a parent requests an IEE, the school must pay for the IEE unless the school requests a hearing and the hearing officer decides the school’s evaluation was appropriate or that the IEE did not follow the school’s rules for IEEs.

Complaints and hearings

A parent or guardian who disagrees with a school’s decisions about a child’s eligibility for special education, or the child’s education plan (IEP) or placement or the child’s education may file a written request for a hearing with the Department of Public Instruction (DPI). A request for a hearing must include the following information: the child’s name and address, the name of the school, a description of the problem and the proposed resolution of the problem. DPI has created a model complaint form that parents and guardians may use. It is on the DPI web site at: http://www.dpi.state.wi.us/forms/doc/f2117.doc

The complaint should be sent to:

Assistant State Superintendent
Division for Learning Support: Equity and Advocacy
P.O. Box 7841
Madison, WI 53707-7841

A copy of the complaint should also be sent to the school district.

If the complaint cannot be resolved by agreement between the school and the parent or guardian, a hearing will be held. Each side will be required to tell the other side what kind of information it will present at the hearing. At the hearing, each side can present witnesses and information and can also present experts. The school will probably have a lawyer and the parent or guardian may also have a lawyer. The hearing officer will issue a written decision.

The school may not make any changes in the current placement while a complaint is pending. This is called “stay-put” and it means things stay the same for the child until there is a decision. However, a change can be made if the school and the parent or guardian agree to the change. (The are special rules that apply to the placement of a child when the school changes the child’s placement for violating the student code of conduct or a child takes a weapon to school or a school function or has or uses illegal drugs or sells, tries to buy illegal drugs at school or a school function, or has caused serious bodily injury to another person at school, on school premises or at a school funtion. These rules are explained in our brochure - Public School Discsipline & Children With Disabilities.)

Mediation

In some cases where the school and parent or guardian disagree, it may be possible to solve the problem through mediation instead of having a hearing. A mediator is someone who helps the school and parent or guardian try to work out a solution to the problem. The mediator does not make any decisions and cannot force either side to agree to anything. Instead, the mediator tries to help the school and parent or guardian work together to settle their disagreement. Either side may ask for mediation when there is a disagreement, but both sides must agree to try mediation before mediation can take place. If mediation does not help to settle the disagreement, the dispute can then be decided through a complaint or hearing.

For more information

More information about special education and the rights of children and their parents or guardians (including information about complaints and hearings and the form for requesting a hearing) may be found at the Wisconsin Department of Public Instruction web site: http://www.dpi.state.wi.us/dpi/dlsea/een/hmparents.html 

Information and advice may also be available from:

Legal Action of Wisconsin, Inc.
(800) 362-3904
www.legalaction.org


Parent Education Project of Wisconsin
(414) 328-5520


Disability Rights Wisconsin
(608) 267-0214/ (800) 928-8778

The above is intended to provide general information only and is not a substitute for thorough and specific advice on an individual case. Depending on the complexity of your legal problem you may need to consult an attorney for advice or representation.

This was prepared by the staff of Legal Action of Wisconsin, Inc. on behalf of low-income clients and was funded by the Legal Services Corporation, Washington, D.C. 20005 and by the Dane County Bar Association Pro Bono Trust Fund. Any opinions contained herein are those of the authors and should not be construed as those of the Legal Services Corporation or the Dane County Bar Association.

Legal Action of Wisconsin, Inc. does not discriminate on the basis of disability in the provision of services or in employment. If you need printed material interpreted or in a different form, or if you need assistance in using our services, please inform us. Deaf, hearing-impaired or speech-impaired callers may reach us through the Wisconsin Telecommunication Relay System (1-800-947-3529).

© 2007 Legal Action of Wisconsin, Inc.

Updated Feb 2007